Agrégateur de flux

The Permanent Bureau of the Hague Conference on Private International Law (HCCH, head office in The Hague, the Netherlands) is seeking legal interns for the period July to December 2020. Applications are now open!

The deadline for applications is Friday 27 March 2020 (18:00 CET).

More information is available here.

Thank you Huib Berendschot for alerting me to a CJEU judgment which had escaped me. In C-678/18 Procureur Generaal bij de Hoge Raad der Nederlanden (Re: Spin Master Ltd) at issue is Regulation 6/2002 on Community designs.

The Regulation provides among others (Article 81) that Community design courts (as appointed in the individual jurisdictions) have exclusive jurisdiction for infringement actions. At issue was whether Member States may extend the exclusivity to provisional measures (Article 90). The Netherlands had done so, however as Huib explains more extensively, the CJEU has now given speed at the level of provisional measures, priority over specialisation: at 41: ‘ whilst the pursuit of that objective of uniform interpretation is entirely justified in the case of court proceedings the substance of which concerns infringement or invalidity actions, the EU legislature also pointed out, in recital 29 of Regulation No 6/2002, that the exercise of the rights conferred by a design must be enforced in an efficient manner throughout the territory of the European Union. The EU legislature was therefore able to ensure that, in the case of requests for provisional measures, including protective measures, concerning infringement or invalidity, the requirements of proximity and efficiency should prevail over the objective of specialisation.’

A most interesting judgment.

Geert.

 

The era of globalization is characterized by the dynamic movement of people across borders and migration in various parts of the world. The juxtaposition and coexistence of different ethnic, cultural or religious groups within society poses the challenge of accommodating divergent legal, religious and customary norms. Of key concern is how far the fundamental values of the receiving state ought to be imposed on all persons on the soil, and to what extent the customs, beliefs and the cultural identity of individuals belonging to minority groups should be respected. This challenge arguably requires reconsidering and reevaluating the conventional methods of private international law that are grounded in the territorial “localization” of legal relationships. Against this background, Yuko Nishitani (Professor at Kyoto University, Japan) envisaged studying various conflict of laws issues from the viewpoint of cultural identity in private international family law and delivered a lecture at the Hague Academy of International Law on “Identité culturelle en droit international privé de la famille”, which has been published in Recueil des cours, Vol. 401 (2019), pp. 127-450.

In her lecture, Nishitani first analyzes the notion and meaning of cultural identity in private international law, after comparatively delineating legal developments in major legal systems (Chapter I). The author posits that, while the notion of cultural identity should not be understood as its own legal category, it serves as a guiding principle and theoretical foundation in justifying certain solutions in private international law (Chapter II).

In multiethnic and multicultural societies, the belonging of individuals to states, regions, communities or other groups is gradually relativised and redefined. In light of the recent effects of globalization, the author contemplates the appropriate methods for determining the personal law to cater for the cultural identity of individuals, overcoming the conventional dichotomy between the principle of nationality and the principle of habitual residence (Chapter III). Considering the multiplication of relevant legal and social norms, the author also considers the interaction between state law and customary, religious or cultural non-state norms to seek solutions for “conflict of norms” in a broader sense (Chapter IV).

On the other hand, for the sake of coherence and security of the legal system, the state exercises control, where necessary, to preclude effects of foreign legal institutions. It is essential to define the functioning of public policy and fundamental rights so as to set limits to respect for cultural identity (Chapter V). Finally, the author reflects on alternative conflict of laws methods geared toward administrative and judicial cooperation between sovereign states, with a view to accommodating the cultural identity of individuals (Chapter VI).

At the end of her lecture, the author highlights the importance of constructive dialogue between different cultures, given that humanity has a long history of success in mutually developing, exchanging and enriching its diverse cultures.

More information about the author and the book are available here (in French).

The proceedings of the symposium held in June 2019 on the Paris international commercial chambers were published in a special issue of the Revue Lamy Droit des Affaires which can be freely download on the website of the Paris Court of Appeal.

The presentations were made in French, and the proceedings are written in the same language.

The Court has provided the following summary in English:

Opening of the Symposium

A little more than a year after the signature of the procedural protocols establishing the international commercial chambers in the Commercial Court and the Paris Court of Appeal, the symposium was opened to a large audience by Mrs Chantal Arens, First President of the Paris Court of Appeal, who, among other things, announced the forthcoming publication of a bilingual procedural guide before these chambers, with the aim of presenting the proceedings in a detailed and didactic manner, and called for the regulatory consolidation of the jurisdiction of the Paris Court of Appeal.

Mr Gille Cuniberti, Law Professor at the University of Luxembourg and moderator of the roundtables, pointed out that the creation of international commercial chambers forms part of an international competition between courts from which one of the issues at stake is the attractiveness of French law.

The creation of the Paris International Commercial Chambers

After a reminder of the origins of the commercial chambers by Mr Guy Canivet, Honorary First President of the Court of Cassation, and of the options chosen by the Ministry of Justice presented by Mr Thomas Andrieu, Director of Civil Affairs for the French Ministry, Ms Marie-Aimée Peyron, Chairman of the Paris Bar Association, went back on the support of the Paris bar in the creation of these chambers.

Students at the Sciences Po Law school of Paris (Mr Félix Briant, Ms Auriane Clement, Mr Mathieu Larroque, Ms Charlotte Muller) presented the fruit of their work done during one year with the International Commercial Chamber of the Court of Appeal by providing an overview of the choices made abroad in the creation of international commercial courts in Europe and in the world.

Roundtables

This symposium allowed to set out how to access to the international chambers in France, their jurisdiction and the applicable procedure, stressing in particular the desire to give greater importance to predictability in the conduct of the trial, the orality of the proceedings, the possible use of foreign languages and, in particular, the use of the English language.

Mr François Ancel, Ms Fabienne Schaller and Ms Laure Albert, all three judges in the International Commercial Chamber of the Paris Court of Appeal intervened to develop these various points, as have the President of the International Commercial Chamber at the Paris Commercial Court, Mr Philippe Bernard, and Mr François Vaissette, Avocat Général representing the General Public Prosecutor’s Office of the Paris Court of Appeal , which was able to clarify the role of the Public Prosecutor’s Office in these chambers.

Mr Alban Caillemer du Ferrage and Ms Emilie Vasseur, members of the Paris Bar, stressed the important role of the creation of these chambers and the will of the bar to promote the stipulation of clauses conferring jurisdiction to the benefit of the Paris courts (in particular in the choice of ISDA to open its Master Agreement to the jurisdiction of French courts and French law) and inisted also on the judicial administration of evidence and the voluntary appearance of the parties and witnesses.

Finally, scientific insight was given by Ms Marie-Elodie Ancel, Law Professor at the University of Paris Est Créteil on the first decisions handed down by the International Chamber of the Court of Appeal and by Professor François Mailhé, Deputy-Dean of the Faculty of Law and Political Science of the Picardie Jules Verne University, who asked in particular how to meet the needs of economic stakeholders (use of the English language, set up of a procedural timetable; compulsory production of evidence; cross-examination).

Closing speech

During his executive summary, Mr Emmanuel Gaillard, Visiting Professor at the Yale Law School and at the Harvard Law School, called for pursuing the movement initiated by the creation of these chambers, in particular in favour of the use of the English language without translation and by implementing an adequate communication to raise awareness of these chambers, considering that France could usefully offer a high-quality public service of justice within a reasonable time and in accordance with international standards.

In Oakfield Foods v Zaklad Przemyslu Miesnego Biernacki SP Z O O [2020] EWHC 250 (QB), Kimbell DJ granted a writ of control for £149,100.43 (monies to be paid into court) on the basis of the European orders for payment and their enforcement (EOPs) Regulation 1896/2006. The order for payment was issued in June 2018 by the Regional Court in Poznan.

In the simmering dispute on jurisdiction, it is Oakfield’s position that the court in Poland did not have jurisdiction because, under the terms of the sales agreement between it and Biernacki, there was choice of court for the courts of England and Wales. The position Biernacki in their application for the EPO is that the meat that was sold from Biernacki to Oakfield, was delivered in each case on Incoterms CIF/CIP under cover of CMR notes, and delivery took place in Poland.

Article 20 EOP provides for a system of review of the order. Oakfield argue that the time-limit included in it has not even begun running for service was not properly done. Oakfield have also launched proceedings in Poland challenging the EOP. Those proceedings were issued on 1 July 2019.

Kimbell DJ after discussing the service issues (incl the relation between the EOP and the Service Regulation) granted a writ of control (shielding therefore Biernacki from the risk of non-payment), stayed further enforcement until the litigation in Poland will be resolved, and also, at 98, ordered that Oakfield notify Biernacki’s English solicitors every four to six weeks of progress in the application challenging the EOP so as to avoid the claim being warehoused.

The substantial debate on jurisdiction in Poland clearly will involve the usual discussions on GTCs as well as Incoterms and choice of court.

Geert.

 

 

European orders for payment and their enforcement (EOPs) Regulation 1896/2006.
Writ of control granted for £149,100.43.
The underlying jurisdictional issue remains: forum contractus following Incoterms CIF/CIP under cover of CMR notes with delivery taking place in Poland. https://t.co/UE0nwfQ2DG

— Geert Van Calster (@GAVClaw) February 11, 2020

La défense a plaidé un homme sous emprise et humilié, espérant une peine inférieure aux douze ans de réclusion criminelle requis jeudi matin.

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Elections

Elections

The fourth research seminar of the IFITIS Research Project, led by Jean-Sylvestre Bergé, will take place in Nice on 13 March 2020.

The IFITIS Project explores, generally, a phenomenon that the project leaders call “full movement beyond control”.

The expression refers to the movement of persons, goods, services etc. across territories. The phenomenon is understood to have a “full” dimension in that it calls for the attention and action of public and private actors (States, companies, individuals) at local, national and international levels. And it is regarded as “beyond control” in the sense that, in specific or short-term situations, like those of crisis, institutions with responsibility for such movement do not have full control over it.

The seminar, titled Antecedent and Modal Approaches to Circulation, is concerned with the understanding and representations of the notion of movement and with the modalities of movement in different areas of knowledge.

Speakers include Christian Rinaudo (Univ. of Nice), Jeremy Heymann (Univ. Jean Moulin – Lyon 3), Alain Strowel (Catholic Univ. of Louvain), Philippe Billet (Univ. Jean Moulin – Lyon 3), Marina Teller (Univ. of Nice), Jean-Yves Carlier (Catholic Univ. of Louvain), Sophie Robin-Olivier (Univ. Paris 1 – Panthéon Sorbonne) and Jean-Sylvestre Bergé (Univ. of Nice).

See here for further information.

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Espace de liberté, sécurité et justice
En cas de vols à réservation unique confirmée, divisés en plusieurs segments et assurés par des transporteurs aériens distincts, l’indemnisation pour l’annulation du dernier segment de vol peut être demandée devant les juridictions du lieu de départ du premier segment

The first issue of the Journal du droit international for 2020 has just been released. It contains two articles and several casenotes relating to private international law.

In the first article, Johanna Guillaumé (University of Rouen) explores the obligation of notaries to apply rules of private international law (L’office du notaire en droit international privé).

The English abstract reads:

The notary is more and more confronted with the presence of foreign elements and, consequently, with the implementation of conflict of law rules. Studies generally focus on the content of these rules and how they are to be implemented. However, this presupposes the resolution of a preliminary question : Is the notary obliged to implement the rules of private international law ? This is the question of the notary’s obligations when faced with a foreign element. No text provides an answer to this question. Case law is also very rare. The article attempts to define the office of the notary in private international law. The analogical approach is first taken, in order to see whether the obligations of the judge or the office of the civil registrar, which are better defined, can be extended to the notary. As the notary does not exercise the judicial mission of the former and does not have the bureaucratic dimension of the latter, the answer is negative. Therefore, only a functional approach can define the obligations of the notary in private international law, that is, an approach which takes into account the obligations that characterize the notarial activity : the obligation to draw up legal and effectives deeds on the one hand, and the obligation to issue instruments on the other. What is the scope of these obligations if there is a foreign element ?

The second article, authored by Guillaume Kessler (University of Chambery), discusses the evolution of the private international law of parentage in new family configurations (Le droit international privé à l’épreuve du renouveau de la filiation).

The abstract reads:

In recent years, parentage law has been undergoing a disruption due to the combined effect of major social and technological developments that have led to the emergence of new family configurations such as co-maternity, multiple parenthood, surrogate motherhood, parentage without sexuality or same-sex adoption. French private international law has not yet really taken note of this renewal and continues to be based on rules that were already open to criticism in their time and that can now be considered obsolete. A change of connecting factor, with a preference given to the law of domicile rather than that of nationality, would be a first step towards resolving some of the difficulties created by this ongoing revolution. The development of the recognition when the status has been established abroad would be a second one. However, the importance of the issue and the complexity of the problems may require an even more radical methodological change and make it necessary to strengthen international cooperation in an area that might seem resistant to multi-state agreements.

A full table of contents can be downloaded here.

Un rapport de la délégation aux droits des femmes de l’Assemblée nationale s’est penché sur le concept de féminicide. Si la rapporteure Fiona Lazaar soutient la diffusion du terme, elle est hostile à l’inscription de ce concept dans le droit pénal, mais souhaite une reconnaissance symbolique par l’Assemblée, par le moyen d’une résolution.

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Depuis mardi, la cour d’assises du Val-de-Marne tente de comprendre ce qui a conduit un mari à tuer son épouse après trente ans de mariage.

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L’arrêt civil de la cour d’assises, statuant en appel, qui accorde à une partie civile des dommages et intérêts sans préciser qu’ils réparent un préjudice souffert depuis la décision de première instance encourt la cassation.

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Professor Ron Brand has just published a new article in the Journal of Dispute Resolution that arose from his presentation at the 2019 Annual Meeting of the American Society of Comparative Law. In it, he applies comparative method to international litigation from the perspective of a U.S.-trained lawyer, and particularly one who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters.

The article is available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3532035

On 29 November 2019, the Council of the European Union adopted a general approach regarding the recast of Regulation 1393/2007 on the service of judicial and extrajudicial documents abroad. On 7 February a new Council document was published, featuring the Annexes of the future Recast Regulation.

The new Regulation, which will likely be adopted in the Summer or Autumn of 2020, is not expected to bring about major changes to the current legal landscape.

A comparison is provided below between some key features of the Commission’s proposal of 31 May 2018, on the one hand, and the corresponding solutions envisaged in the compromise text elaborated by the Council, on the other.

1. The Commission proposed to clarify by an additional paragraph in Article 1 that the Regulation does not apply “to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party”, thereby moving to the body of the Regulation what was already stated in Recital 8 of the 2007 Regulation. Concurrently, the Commission envisaged to introduce a new provision – Article 7a – requiring the recipient to appoint a representative for the purpose of service in the forum State for all documents following the one introducing proceedings. The Council took the view that both innovations should be dropped.

2. The Commission Proposal aimed to enhance electronic communication between Transmitting and Receiving Authorities, suggesting the establishment of national IT systems (Article 3a). This provision was partially amended, following the concerns of national delegations with respect to the sustainability of a decentralized mechanism.

3. The Proposal introduced a new provision, aiming at a more active assistance of Member States authorities towards a smoother and more efficient search of the whereabouts of the defendant (Article 3c). The provision underwent minor amendments by the Council.

4. The Proposal added two paragraphs to Article 8. One was meant to extend the delay by which the recipient may refuse service, while the other intended to specify the duty of the court of the forum to examine whether the refusal was founded. The Council’s compromise text retained the former suggestion, while rejecting the latter.

5. The Proposal introduced two additional paragraphs in Article 14 on service by post, suggesting the use of a specific acknowledgment of receipt, and deeming postal service as validly effected when served to adult persons living in the same house with the recipient. The Council rejected the proposed amendments. With reference to Article 14, two additional points should be stressed: first, the wording of the provision has changed in a way that leads to the conclusion that postal service does not have to pass through transmitting authorities / court channels; second, postal service may be resorted to not only for persons domiciled, but also for those who are merely present in the country of destination.

6. The Commission Proposal attempted to pose an obligation to all Member States to provide information on professions or competent persons permitted to effect direct service. The Council deleted this part of the proposal almost in its entirety. The efforts of the Commission towards extending direct service in all Member States met with the adamant refusal of the Council.

7. The Proposal introduced a provision on electronic service (Article 15a). The Council adopted in principle the proposal as Article 14a, slightly modifying its wording. It also stated the obligation of Member States to specify the conditions under which electronic service will be accepted.

8. The Commission proposed two innovations on Article 19, regarding the situation where the defendant fails to enter an appearance: an additional tool of communication for the purposes of Article 19(2), i.e. sending an e-mail or a message to an address or an account known to the court seised, and a streamlined approach to the delay within which an application for relief must be filed with the court (2 years following the date of the judgment). Both proposals were discarded by the Council.

As a general conclusion, it may be stated that the innovative steps proposed by the Commission were met with reservation both by the European Parliament and the Council. What hopefully will improve is the cooperation between Member States authorities in the preliminary field of transmission. This will of course depend on the willingness and preparedness of Member States.

Regarding actual service of process, the situation remains the same. A divide among Member States will continue to exist in regards to direct service; e-service will heavily depend on the conditions set out by Member States; a unified approach regarding the term within which an application for relief was rejected; finally, the obligation of the claimant to serve everything abroad will continue to exist, save for the exceptions provided for by the Regulation (legal representative and unknown residence), confirmed by the CJEU in the Alder case.